In a divorce proceeding involving children, the court must address custody. It can order joint, sole, or physical custody, depending on the circumstances of the case. Nevertheless, conflict between the parents can lead to the issuance of a restraining order against one parent to ensure the other parent's safety, thereby complicating the child custody arrangement.

While the court utilizes these legal tools to protect the abused or protected party, they can cause collateral repercussions that affect the child custody arrangement. The court makes changes to the child custody orders because of accusations of violence or abuse to protect the child’s interests. If you seek a restraining order or are fighting one in a case involving child custody, consult an experienced restraining order attorney to understand the issues involved.

The Intersection Between Child Custody and Restraining Orders (ROs)

In domestic violence (DV) incidents, the court issues an RO to protect the victim. However, these orders do not exist in isolation. If you are a parent with a child custody arrangement, an RO shapes how the court sees the custody case or your ability to parent. An RO brings concern about your parenting capabilities. The court presumes that the restrained parent cannot safely care for the child or children and therefore must take action to safeguard the child’s interest. This does not mean that the court will deny you, a restrained party, even visitation. Your presence in the child’s life has significant benefits to their well-being. However, as much as it will allow a relationship, the court must address the matter of custody safely.

When handling child visitation or custody where a minor is in question, the court must reasonably find out if an emergency or temporary domestic violence restraining order (DVRO) exists that affects the protected party or child. The custody order must be consistent with the RO unless new circumstances, such as divorce, require a modification. Also, the court’s decision must promote a healthy relationship between the parents and children.

Child Custody Under a Temporary DVRO

After a DV incident, the responding officers can request the court for an emergency protective order (EPO) if they establish that leaving the accused with the victim increases the risk of harm. With the orders lasting no more than 5 to 7 days, allowing the victim to apply for a temporary DVRO. After the expiry of the EPO, the victim can apply for a temporary DVRO to extend protection until the permanent DVRO hearing. An application for temporary DVRO can have sudden effects. Pursuant to California Family Code 6323, the court has the mandate to issue temporary child custody in the absence of the restrained party under a temporary DVRO. However, the judge decides if the protected party:

  • Satisfies the legal conditions under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), or
  • Demonstrates the existence of a parent-child relationship

Demonstrating a Child-Parent Relationship

Even if a temporary custody under FC 6323 can be issued in the absence of the defendant, you, the petitioner, or the protected party, must prove that you are a parent to the child to receive custody. If the defendant has already submitted proof of a parent-minor relationship, the court can grant visitation to the defendant, pending the determination of parentage. If you have yet to prove a parent-child relationship exists, initiating a parentage action is sufficient to compel the family court to issue temporary custody orders.

The proof you need to demonstrate to the court that you have a relationship with the minor you seek custody of includes:

  • Showing you are the birth parent of the minor
  • The child is born out of wedlock
  • The court is satisfied you are the minor’s parent
  • You are legally adopting or have adopted the minor
  • You have presented a signed voluntary paternity declaration that has been active for at least sixty days before applying for temporary DVRO.

If by the time the court issues the temporary custody orders, the defendant has established the existence of a parent-child relationship, the court will issue you sole physical and legal custody orders while denying the respondent even visitation. The only time the court will grant the restrained individual child visitation is after paternity is established. The judge rules on temporary custody based on the best-interest standard for the child. That way, the child is protected from DV and the entire family remains safe.

Fulfilling Federal Custody Conditions

Prior to the issuance of lawful custody orders, the federal law requires the plaintiff or protected individual to establish that:

  • California is the child’s permanent residence or home state
  • The child does not have a home, and the minor and one parent have links to California, and there is sufficient evidence in the state of the child’s personal relationships, training, protection, and care.
  • There is an emergency that necessitates the court to issue lawful orders for the minor’s safety.

The court will establish that your child’s home residence is California if the minor has been physically present in the state for at least six months prior to the DVRO application. If the minor is younger than six months, you should demonstrate to the court that they were born in California and meet either of these conditions:

  • No court outside the jurisdiction has made any custody orders on the minor
  • A court outside the jurisdiction issued custody orders regarding the child, but later declared it had no jurisdiction over the case.

In simpler terms, when an emergency, such as abandonment or the child’s parent or siblings have been harassed, abused, or threatened while the child is in California, a state court can issue temporary custody orders for the minor’s best interest.

Rebuttable Presumption Under FC 3044

FC 3044 established the doctrine of “rebuttable presumption,” which applies in custody cases involving DVROs. The legal doctrine shifts the burden of proof to the restrained party, requiring them to show they pose no threat to the minor.

California has two forms of child custody: physical custody and legal custody. A parent with legal custody over a minor makes major decisions regarding the minor's life, including education, healthcare, and welfare. If a parent has physical custody over a minor, it means they live together most of the time. Whatever type of custody the court issues, it can be shared among the parents or be sole. If the court establishes that you have a DVRO against you, it cannot grant shared, sole legal, or physical custody, as it presumes that, with your history, you are not capable of parenting.

If the court makes this presumption about you, the burden significantly shifts to you to rebut the court’s presumption under FC 3044. It means that with enough proof, you can challenge the court's custody orders issued based on the presumption.

The rebuttable presumption doctrine applies in your case if the court establishes that you, the restrained party, engaged in a domestic violence incident within the last sixty months against:

  • Your minor’s other parent
  • The child or their siblings
  • Your parent, or
  • Your current or ex-fiancée, registered domestic partner, or romantic partner

If you have a DV finding against any of these parties, the court will presume that awarding shared or sole legal custody or physical custody disregards the minor’s best interest. A DV finding means that you have a DV conviction record or the court established through a DVRO hearing that you engaged in DV.

The court’s presumption that leads to the denial of custody is not final and cannot end your parental rights by default. It only shifts the burden of proof to the restrained party to demonstrate that they are fit to have custody of the minor. By shifting the burden of proof, the court creates a legal obstacle that a restrained individual must overcome, giving the plaintiff seeking custody orders a legal advantage aimed at ensuring the minor’s safety. The proof that the court considers during the rebuttal to determine if you are fit for child custody or granting custody would be in the child’s best interest include:

  • Completion of a batterer’s program
  • Completion of a court-imposed parenting program
  • Compliance with the court’s protective order terms
  • Successful completion of parole or probation
  • Avoidance of another DV violation
  • Granting shared or sole custody is in the minor’s best interest

The judge only applies the rebuttal resumption where applicable. If you have a child custody proceeding where the other parent alleges domestic violence, the court must establish the facts of the case to establish whether they can raise the doctrine.

If the court cannot determine whether the doctrine applies in the case during the first custody proceeding, the court will grant temporary custody to the claimant, pending a permanent DVRO hearing, at which the court will determine whether the accusations are true. However, the court can allow supervised visitation to the defendant pending the hearing if they can prove they have parental rights over the minor.

For the court to grant a restrained party visitation or custody, they must find the person not to be a threat to the minor’s safety and write down the reasons behind the findings. Instances when the judge can find that you, a restrained individual, do not threaten the child’s safety and are suitable for visitation include:

  • You are enlisted with the Megan’s Law Website as a sex offender after a guilty verdict for a felony child abuse violation.
  • You live with an individual registered as a sexual offender after a sentence for felony child abuse.
  • You have a conviction for child abuse
  • You have a record of child molestation
  • You have a criminal record for child endangerment

If you have a rape charge conviction and the incident led to the conception of your child, the court cannot grant unsupervised visitation or shared or sole legal custody.

Child Custody Arrangements Involving DVROs

Even when the court issues a DVRO against you, you can still qualify for custody or visitation. Nevertheless, the court must set strict conditions that you must comply with to promote the child’s interests. The aspects of the custody order, including time, fashion, and day of visitation, must be customized to protect the child from another DV incident or promote the family’s safety.

When imposing the custody order, the judge must keep in mind any existing or active protective orders and find out how they are enforced to decide on custody. If you are eligible, the court can grant supervised or unsupervised visitation.

Supervised visitation is the most common in cases involving restraining orders. Under the arrangement, the court allows you, the restrained person, to visit the child, but under the supervision of a neutral third party called a supervisor or provider. The role of the supervisor is to allow the parent to create a relationship with the child. The role of the provider in keeping the child safe during supervised visitations includes:

  • Listening to your conversations with the child
  • Being physically present during the visits
  • Observing the minor’s conduct during these meetings
  • Reporting all observed instances of child abuse
  • Interrupting or terminating visitations whenever there are child safety concerns

The court can assign you a professional or nonprofessional supervisor, contingent on your case’s facts. Professional providers are neutral third parties with special training and a clean background. They are paid for their services and are normally attached to the child protection services. Their work is to observe, listen, and report any child abuse cases to authorities.

Conversely, a nonprofessional provider is a neutral third party with no training whose work is to observe and listen to visits. It can be a friend or family member trusted by both the protected and restrained parties. However, if you are concerned about the child’s safety and well-being during visitation, it is wise to retain the services of a professional provider. They will use their training to focus on the minor’s conduct during meetings, and if there are any concerns, they will know the appropriate time to end or interrupt the visit.

During supervised visitations, as the restrained party, you must avoid specific conduct, including:

  • Showing up for the meeting while impaired by alcohol or drugs
  • Speaking negatively of the other parent to try to turn the child against them
  • Disregarding the provider’s instructions on the supervised visit
  • Attempting to relocate the minor from the approved visitation location

Some of the conditions of supervised visitation are difficult to comply with, increasing the risk of a violation. So, if you find the conditions strict, you can petition for supervision modification.

Child Custody Modification After a DVRO

You can petition the judge to make changes to the existing child custody orders if you deem it necessary or are doing so for the minor’s interest. The court can only effect changes to a child custody order when there is a significant change in circumstances or discovery of new evidence that affects the minor’s welfare, such as health, a parent’s change in physical address or location, or work program. Either the restrained or protected parent can submit the request for modification. The reasons for seeking changes in the arrangement include:

  • A minor’s request
  • Violation of the existing agreement
  • Challenges in the child’s life or the life of one of the parents that warrant changes

The court considers several factors before granting the application, including:

  • Reason for issuing the legal tools
  • Separation of the parents
  • The minor’s best interest

The court’s verdict, even though unfavorable, is final. If any of the parents are dissatisfied, they request another modification in the future.

Co-parenting with a No-Contact Order

If you request or receive a no-contact order from the other parent, it might appear like you cannot coparent. Coparenting is a type of parenting that prioritizes communication, mutual respect, and working as a team to raise a child after a divorce or separation. When there is a big conflict, and one parent obtains a no-contact order against the other, parallel parenting can help overcome the conflict.

Some judges issue these orders with rules to govern coparenting. Others do not specify coparenting terms, leaving it up to the parents. If you are the restrained party, it is your responsibility to obey the court orders, even when the other parent plans to overlook some of the orders to foster good coparenting. Engaging in a restraining order violation and trusting the other party will not report is a massive risk you should not take.

No contact orders are legal tools that bar any form of communication or approaching the protected party. So, if you must communicate with the coparent but communication is prohibited, try parallel parenting, which entails:

  • Attending the minor’s separate events or at different times to avoid meeting
  • Use co-parenting apps for any communication
  • Use a third party, such as a visitation supervisor or your restraining order attorney, for communication.
  • Ask the court to conceal your contact details

When it comes to exchange locations during visitation, you can use the provider to pick up and transport the child to the visitation or exchange location. Also, you can use a rideshare that is safe for the child or have the child transport themselves to the location if they have attained the age to do so. Again, plan exchanges according to the school program so that one parent drops the child and the other does the pick up to avoid contact.

Find a Competent Restraining Order Attorney Near Me

While restraining orders are effective legal protective tools, they come with devastating repercussions to the parents, children, and the entire family. The restrained person could lose parenting rights, severing their relationship with the child, which is not in the minor’s best interest. So, when seeking or fighting a restraining order, you should consult an experienced attorney to understand how the orders intersect with child custody.

At Goldman Flores Restraining Order Law Firm, we recognize the benefits and collateral consequences of a restraining order. Call us at 213-341-4087 to discuss restraining orders and answer your questions regarding child custody issues involving ROs in Los Angeles.